label was misleading as to the vinegar, its substance and ingredients. The facts admitted sustain the charge of misbranding.
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DISCUSSION QUESTIONS
1 3.15 Puffery. In the context of false and misleading labels, what is the meaning of the word “puffery”? What is the difference between opinion, puffery, and misleading statements?
2 3.16 Misleading to whom? Whose viewpoint determines what is false and misleading? Is it a single consumer, most consumers, an average consumer, a diligently skeptical consumer, an average gullible consumer?
3 3.17 Frooty claims. At least two plaintiffs have alleged that they were duped into believing Froot Loops cereal contained real fruit. A “reasonable consumer” may be unwary or trusting, but these cases were dismissed as a matter of law because no reasonable consumer could be misled. “Froot” does not indicate real fruit ingredients. The cereal pieces are neon colored rings, which in no way resemble any fruit. Moreover, the front of the pack of cereal states the product is a “sweetened multi‐grain cereal.” See, McKinnis v. Kellogg USA, 2007 WL 4766060 (C.D. Cal. 2007); and Videtto v. Kellogg USA, 2009 WL 1439086 (E.D. Cal. 2009). Similar claims have been dismissed for “Cap’n Crunch’s Crunch Berries” cereal. See, Werbel v. Pepsico, Inc., 2010 WL 2673860 (N.D. Cal. 2010).
4 3.18 Actual injury. In the Alleged Apple Cider case, would it matter that no purchasers were misled or injured? Should this matter? See, U.S. v. 88 Cases … Bireley’s Orange Beverage, 187 F2d 967 (3d Cir. 1951) (FDA’s burden to prove is the label’s “capacity to deceive”).
False or Misleading as a Matter of Law
In the 1960s, the A. Freed Novelty company sold a variety of novelty items and gag gifts. One Freed Novelty’s item was labeled “Liquor Flavored Lollypops,” but they contained no liquor. The FDA contended that the product was misbranded under the FD&C Act because the labeling was false or misleading because the name implied that the lollipops were flavored with real liquor, which they were not.
Freed Novelty argued that their product was not a food under the meaning of the FD&C Act, but rather a “novelty.” The company also argued that their product’s labeling—as a whole—was not false or misleading because the ingredient statement informed consumers that the lollipops contained no liquor. Freed Novelty also contended that the word “candy” on the label indicated that the lollipops contained no liquor.
The procedural posture of the case is important in understanding the opinion of the court. The court did not decide whether the lollipop labeling was misleading. This case was decided as a summary judgment. Therefore, the only ruling by the judge was whether the case could be decided solely on the pleadings submitted by the parties, or whether the case must be ordered to a full trial.
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United States v. 432 Cartons Individually Wrapped Candy Lollipops
292 F. Supp. 839 (1968)
MANSFIELD, District Judge.
This is a libel for condemnation instituted under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334(a), on the ground that the article of food seized was misbranded when introduced into interstate commerce. The complaint for forfeiture alleges that the labeling of the article is false or misleading and that therefore the food is misbranded under 21 U.S.C.A. § 343(a)….
The article of food in question consists of about 432 cartons each containing six lollipops. On the outside the carton is labeled on top “Candy for … one with Sophisticated Taste,” on one side, “A. Freed Novelty, Inc., N.Y.C.,” and on the other side, “Ingredients: Sugar, corn syrup, citric acid, natural and artificial flavors.” The inside of the box contains the legend, “Liquor Flavored Lollypops,” and the slogan, “Take Your Pick of a Liquor Stick.” In addition the lollipops themselves are labeled, both in the box and on the cellophane in which they are individually wrapped, as “Scotch,” “Bourbon,” and “Gin.”
The Government contends that the internal labeling is false or misleading in that it implies and represents that “the article is flavored with liquor, which it is not.” In response claimant does not allege that the lollipops are flavored with liquor, but by way of affirmative defenses contends that they are not misbranded because the cartons are clearly labeled “candy” and the ingredients are distinctly set forth, and that the ordinary purchaser would not read or understand it to represent that the lollipops contain any alcohol or liquor.
In approaching the question of whether the labeling here was false and misleading within the meaning of the statute, we recognize that the statute does not provide for much flexibility in interpretation, since it requires only that the labeling be false or misleading “in any particular.” This represents a stricter substantive standard than that applied with respect to false advertising, which in order to be prohibited must be “misleading in a material respect.” Furthermore the statute says “false or misleading.” For instance, the use of the term “fruit flavored” on a pudding product has been held after a trial on the merits to be false and misleading even though the product was manufactured from grain which, while botanically a fruit, was not a fruit in common parlance.
The issue of whether a label is false or misleading may not be resolved by fragmentizing it, or isolating statements claimed to be false from the label in its entirety, since such statements may not be deemed misleading when read in the light of the label as a whole. However, even though the actual ingredients are stated on the outside of a carton, false or misleading statements inside the carton may lead to the conclusion that the labeling is misleading, since a true statement will not necessarily cure or neutralize a false one contained in the label… . Furthermore, the fact that purchasers of a product have not been misled, while admissible on the issue of whether the label is false or misleading, would not constitute a defense….
Applying these principles here, it cannot be concluded as a matter of law that no material issue exists with respect to the alleged false and misleading character of the label here before us. Although the labeling on the inside of each box of “candy,” when read alone, might be misleading, the detailed description of the contents of the box listed on the outside of the carton could convince a jury, when the labeling or literature is read as a whole, that it is not “misleading in any particular,” as that term is used in 21 U.S.C. § 343(a)….
It appears that the Government, although it has not so indicated in its papers, may be concerned with some potential abuse in the distribution of this product that has not been drawn to the attention of this Court. If this is so, it would seem appropriate for this factual aspect of the case to be developed at trial rather than to grant a judgment on the pleadings in favor of the Government on the basis of a completely rigid reading of the words of the statute and a fragmentization of the labeling under attack here. The Government’s motion for a judgment on the pleadings is therefore denied.
So ordered.
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NOTES AND QUESTIONS
1 3.19 Resolution on remand. Although the Lollipop case was ordered to go to trial, “an order for discontinuance of the action was entered pursuant to stipulation of the parties.” PETER BARTON HUTT, RICHARD A. MERRILL, AND LEWIS A. GROSSMAN, FOOD AND DRUG LAW 109 (3d ed. 2007) (citing 5 FDA Papers, No. 3, at 42 (Apr. 1971)). Often in such cases, the company will decide to relabel the product to address FDA’s concerns.
